Opinion
B300207
03-30-2020
In re DAMIAN R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NORMA L., Defendant and Appellant.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP02986A) APPEAL from orders of the Superior Court of Los Angeles County. Philip L. Soto, Judge. Affirmed. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
Norma L. (Mother) appeals from the dependency court's jurisdictional finding that her son, Damian R., is at substantial risk of harm due to a violent incident with Jose R. (Father) and Mother's failure to protect Damian. (Welf. & Inst. Code, § 300, subds. (a) and (b)(1).) We affirm the jurisdictional findings and dispositional orders.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
Damian has Autism Spectrum Disorder. At the time of the proceedings, he was enrolled in sixth grade at a special education school, but functioned at a pre-kindergarten level. Mother and Father were together for 10 years before they separated in 2016.
The Intimate Partner Violence Incident
On June 6, 2018, Father threatened Mother's male friend with a knife while Mother and Damien were present. A bystander called the police and reported to the responding officers that Father held the knife in a stabbing position and threatened Mother's friend, "Come here you mother fucker! I'm gonna kill you!" Mother's friend fled. Mother attempted to calm Father as she and Damian walked away from him. Mother then saw Father walk towards the road where her car was parked. She heard glass breaking, but did not see who was near her car. Officers observed Mother's car had a broken right side rearview mirror.
Father then walked back to Mother and Damian with a wooden stick. Father hit Mother on her left thigh. When she told Father to leave her alone, he grabbed her by the hair and pulled her to the ground. He slapped her twice on the left cheek. Mother told the officers that Father had assaulted her approximately 20 times in the past, but she had reported him only twice. The officers noted Mother had visible redness to her left cheek and a six-inch welt on her left thigh.
When questioned by the officers, Damian was only able to say that Father attempted to hurt him and Mother. He responded, "I don't know" to the officers' other questions. Father provided a written statement after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. In it, he stated he and Mother were together all day until 3:00 p.m., when they picked Damian up from school. They began to argue, calling one another names. Father left to his mother's house. Mother then texted him pictures of her and Damian at the park with her new boyfriend. Father arrived at the park and began to chase the man. Mother hit Father with a beer bottle. Father stated, he "never put hands on her . . . ." The officers recovered a four inch silver folding knife from Father's right rear pocket. He was arrested for intimate partner violence. (Pen. Code, § 273.5.)
The Voluntary Family Maintenance Contract
The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) because of the incident at the park. Mother agreed to a voluntary family maintenance contract on September 20, 2018. She agreed to petition for full custody of Damian in family court and seek a restraining order against Father. The contract also required Mother to complete a domestic violence program, individual counseling, parenting classes, and a family preservation program. Mother agreed to enroll Damian in Regional Center services.
DCFS was unable to locate Father and he did not participate in the proceedings. He is not a party to this appeal.
The Regional Center provides services to developmentally disabled persons. (See Clemente v. Amundson (1998) 60 Cal.App.4th 1094, 1098; §§ 4500.5, 4501, 4512, 4620.)
Owing to the criminal proceedings against him, Mother received a three-year restraining order in October 2018, prohibiting Father from contacting her or Damian. However, she failed to seek full custody of Damian or fulfill the other requirements of her contract after almost eight months under voluntary family maintenance.
Mother failed to schedule any appointments to participate in a domestic violence program and individual counseling, despite openings for Mother in those programs. Likewise, Mother never followed through with DCFS's November 2018 Regional Center referral for Damian. Mother participated in five parenting classes in January and February 2019, but was terminated from the program due to her lack of attendance. Mother was also terminated from in-home family preservation services due to her frequent cancellations and failure to attend scheduled meetings.
DCFS attempted to address its concerns surrounding Mother's failure to comply with the contract. In her interview with the social worker, Mother minimized the domestic violence with Father. She stated she was "over it" and did not plan to file for sole custody because "the incident was not his fault." She believed Father was "a good guy, he was just on drugs that day and was out of his mind. There is a possibility that [she] may allow[] him to be in [her] and Damian's life again."
Mother claimed she had been on the waitlist for domestic violence classes and counseling at one agency for seven months. The case manager reported, however, that the agency had openings in counseling and domestic violence for Mother; she only needed to schedule an appointment. When the social worker asked Mother about it, Mother told her she was not interested in participating in the classes and just wanted the case closed.
The Dependency Proceedings
On May 10, 2019, DCFS filed a petition under section 300, subdivisions (a) and (b)(1), alleging the following as to both counts: "The child Damian R[.]'s mother, Norma L[.], and father Jose R[.], have a history of engaging in violent altercations in the child's presence. On 06/06/2018, the father brandished a knife at the mother. The father struck the mother's thigh with a stick, inflicting a welt to the mother's thigh. The father grabbed the mother's hair and pulled the mother to the ground by the mother's hair. The father repeatedly struck the mother with the father's hand, causing redness to the mother's face. The father broke a mirror on the mother's car. On 06/06/2018, the father was arrested for Intimate Partner Violence with Injury. On 06/06/2018, the mother struck the father with a bottle. The mother failed to protect the child from the father. Remedial Services failed to resolve the family's problems in that mother failed to regularly participate in a Parenting Program, Individual Counseling and Domestic Violence Counseling. Such violent conduct on the part of the father against the mother and the mother's failure to protect the child endanger[s] the child's physical health and safety and place[s] the child at risk of serious physical harm, damage, danger and failure to protect."
By the time of the jurisdiction/disposition report, Mother claimed the incident at the park on June 6, 2018, was an isolated one and denied any history of domestic violence, contrary to her previous statement to the police. She also claimed her work schedule prevented her from participating in counseling or classes; she said she only had one day off a week and preferred to spend it with Damian, rather than attend classes.
Mother reported she separated from Father two years ago when he became verbally aggressive and constantly angry. He argued with her over little things. She believed this change was a result of him losing his job and starting to use narcotics. Mother denied any contact with Father after the incident at the park, stating she had heard from a mutual friend he moved to San Francisco. Mother claimed she had no information as to Father's whereabouts.
However, paternal grandmother reported Mother visits Father at paternal grandmother's home, where he occasionally stays and receives mail. In a second interview on August 1, 2019, paternal grandmother confirmed Father visits her home twice a week to take a shower and eat. When he last visited paternal grandmother, she informed him of the next court hearing. Father told her he will talk with Mother regarding the DCFS proceedings.
On July 31, 2019, Damian reported to the caseworker he saw Father on Monday, but then reconsidered and stated he saw him on Wednesday or Friday. Damian had previously reported seeing Father, but Mother believed he was confused and likely merely remembered seeing Father at the park on June 6, 2018.
Maternal grandmother reported Mother and Father argued all the time, but she never witnessed any physical violence between them. Mother's family members expressed concern about her emotional wellbeing. They hoped Mother would agree to see a therapist.
At the jurisdictional and dispositional hearing, the juvenile court sustained the allegations as to section 300, subdivisions (a) and (b), as pled. The juvenile court declared Damian a dependent of the court. Damian was ordered to remain in Mother's custody. Mother was ordered to participate in: a domestic violence support group for victims; a parenting education program; family preservation services, and individual counseling to address all case issues, including anger management. Mother was also ordered to ensure Damian received services for his Autism Spectrum Disorder, including those offered by the Regional Center services. Mother timely appealed.
DISCUSSION
Mother contends there was insufficient evidence to support the juvenile court's jurisdictional findings. Mother claims Damian is not a child described by section 300, subdivision (a) or (b)(1), because he has not suffered and is not at substantial risk of suffering serious physical harm. We disagree and find substantial evidence supports the juvenile court's findings.
" 'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings . . . of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' " (In re R.T. (2017) 3 Cal.5th 622, 633.)
Section 300, subdivision (a), applies where, through exposure to a parent's domestic violence, a child suffers, or is at serious risk of suffering nonaccidental serious physical harm.
Under section 300, subdivision (b)(1), the juvenile court may exercise jurisdiction over a child when the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness" as a result of the failure of his or her parent to "adequately supervise or protect the child" or by the failure of the parent to "provide regular care for the child due to the parent's mental illness, developmental disability, or substance abuse."
A single incident of potentially harmful conduct may be sufficient to establish jurisdiction. (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026.) "In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim . . . ." (Ibid.) Exposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)(1). (See In re R.C. (2012) 210 Cal.App.4th 930, 941; In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re E.B. (2010) 184 Cal.App.4th 568, 576.)
Given the guidelines we have just set forth, there is sufficient evidence to support jurisdiction under section 300, subdivisions (a) and (b)(1), based on Mother's failure to protect Damian. The risk posed by the June 6, 2018 domestic violence incident to Damian, a child who functions at a pre-kindergarten level, was substantial; it occurred in his presence and the violence was severe enough to result in injuries to Mother and damage to her car. Damian understood that Father was trying to hurt him and Mother. Father smashed Mother's rearview mirror, hit her with a stick, pulled her to the ground by her hair, and slapped her. There was also evidence both parents used weapons against one another: Mother used a beer bottle and Father used a stick. Mother reported there had been 20 incidents of intimate partner violence during her relationship with Father and that he had become constantly angry.
Given the seriousness of this incident, Mother's lack of insight into domestic violence issues, her attempts to discount the seriousness of the domestic violence by Father, her unwillingness to seek help, and her willingness to allow Father contact with Damian placed Damian at substantial risk of harm. Despite indicating to DCFS she understood the seriousness of what occurred, Mother subsequently minimized the incident, stating she was "over it" and wanted the case closed. She also denied any prior domestic violence had occurred, contrary to her earlier statement to the police. Mother failed to complete any of the programs she agreed to participate in, and which were designed to address the issues that brought Damien to the court's attention. Both Damian's and paternal grandmother's statements to DCFS support a finding that Mother continued to have contact with Father and allowed Damian to see Father, despite the protective order. Mother also stated Father was a "good guy" and admitted she would likely allow him into their lives again.
From this evidence, the juvenile court could reasonably conclude Mother's conduct placed Damian at substantial risk of harm from Father's anger and violence. We are not persuaded by Mother's argument that Damian is not at risk because she has provided appropriate care to Damian and has had no contact with Father. We are not required to credit the evidence cited by Mother, such as maternal grandmother's statement she never witnessed physical violence between the parents or Mother's own statements she had not seen Father since the 2018 incident. The trial court found otherwise. We do not reweigh the evidence or overturn a juvenile court's finding, such as this one, based on substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Casey D. (1999) 70 Cal.App.4th 38, 53 ["Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact."].) Even if we find Mother provided an adequate home environment for Damian, that does not negate the substantial evidence, detailed above, of a risk of harm to him from Father's domestic violence.
DISPOSITION
The juvenile court's jurisdictional findings and dispositional orders are affirmed.
BIGELOW, P. J. We concur:
STRATTON, J.
WILEY, J.